28 August 2011

I've said it before, but the thought bears repeating: there's no devolution without devolution. Most of you will have spotted this week's higher education headlines. Although I'm not a regular reader, the Daily Mail offers the most pungent, pithy summary: Jennifer Watts, 19, leads "fees apartheid" campaign against Scotland's "anti-English" bias. The whole ballyhoo rumbled into life when English lawyer, Phil Shiner, told the media that he intends to challenge the lawfulness of differential university fees, which will see Scottish-resident students in Scottish institutions receiving free higher education, while non-resident UK students who propose to take their degrees north of the Border will have to stump up (likely) hefty fees, at levels to be determined by the Universities themselves.

Thus far, only my sister's alma mater, the University of Aberdeen, has announced its decision, deciding to cap their chargeable fees at £27,000 for students from outside Scotland, an equivalent cost to English three-year degrees, charged at £9,000 per annum - with the last, fourth year uncharged. Lurking pregnantly behind all of these calculations is European Union Law, a subject I'm catastrophically ignorant about. My understanding of the situation, such as it is, is that we are obliged to educate students from EU member states on the same terms as "local" students, meaning higher fees cannot be levied and the same grants must be awarded. Swede, Dutchman or Pole - all must be charged the same, or nothing at all, if Scots pay nothing. Fees required of an Englishman in Edinburgh, by contrast, do not engage EU law, as funding choices are internal matters within a member state. If Scotland were to be independent and within the EU, EU law would be engaged and English students would join their Swedish, Dutch and Polish fellow EU citizens, enjoying free higher education in Scotland alongside their Scottish companions.

As some have pointed out, for Scottish nationalists, this means that any policy of levying substantial fees on students from the rest of the UK while keeping free provision for Scottish students must needs be a transitional measure at best, requiring revisiting and revision if and when Scotland becomes an independent state within Europe. While the current policy does pose future questions, and the pertinence of those questions for Nationalists shouldn't be denied, the limited serviceable life of charging non-resident UK students increased fees doesn't mean that it is wrong to do so. Any independence referendum is scheduled to take place towards the end of the present parliament, in 2014 or 2015. As I have noted elsewhere, there is the eminent possibility that Holyrood's Referendum Act gets waylaid by legal challenges to its legislative competence. Assuming the question is (or questions are) put before the Scottish people, and assuming they vote "yes", Scottish assumption of separate statehood is at the very least half a decade away. By all means, shillelagh anyone daft enough to deny that higher education funding will become a problem for Scotland in Europe in a way that it isn't while Scotland remains in the Union, and while EU law remains uninterested in internal differences in treatment within states. Demand answers from nationalist ministers about their awareness of the issue, and ideas for funding higher education post independence during the referendum campaign. But a time-limited policy isn't necessarily a bad policy.

Others, like Phil Shiner, are keen to challenge the policy from within the United Kingdom, arguing that the funding distinctions based on residence or non-residence in Scotland are "unlawful". Presumably, he has the Scotland Act 1998 in prospect, which limits the powers of the parliament and of Scottish Ministers. Both can only legally operate within EU law and the European Convention on Human Rights, a vires limit which I've extensively discussed in other contexts, including the as-yet undecided case brought by insurers in the UK Supreme Court, challenging Holyrood's pleural plaques legislation in similar terms.

The response to Shiner's attention-grabbing announcement has been startling. Perhaps most surprisingly is how seriously this declaration of legal activity has been taken, cascading throughout the press, attracting supportive editorials and articles and comment. In life, plenty of fruitcakes and would-be vindicators of their rights earnestly cry "see you in court!" when subject to perceived slights or injustices. Where our enthusiastic would-be litigant lacks legal know-how, we have good grounds to be skeptical of their claims. As we saw recently with Geoffrey Robertson QC's astonishingly ignorant appearance on Newsnicht, talking rot about Megrahi, being up on your English law doesn't necessarily warrant any faith that your understanding of Scottish jurisprudence is up to snuff. Yet Shiner's envisaged litigation - which incidentally, he is unable personally to bring and will have to instruct Scottish solicitor and counsel - has been reported with remarkably little skepticism. Some are even taking up the prospect with enthusiasm, wishing him well. But why? LoveandGarbage offered this explanation...

"It has been taken seriously because lots of people are stupid. And prone to fall for publicity stunts by clowns."

While I'd agree with Scott that Shiner's legal case seems tenuous at best, I'd supplement his comments with a broader observation that the tale has gained such purchase because it contributes to a persistent but rather confused analysis of political differences in the UK - and sour England. I come back to the point: there's no devolution without devolution. I have a good deal of sympathy for students in England, and their distress to see that Scottish students attending Scottish institutions do not share the burdens of debt which are now being imposed on them by their government. However, the whole purpose of devolution is that within the compass of devolved matters, the constituent parts of the UK may pursue different tacks, within certain constraints, funding or defunding what they like to rates which satisfy them, bearing costs or shifting burdens. In that context, how are we to understand the ideas of fairness, discrimination, apartheid and inequality which are being used by campaigners like Jennifer Watts and their process servers? There is a legal dimension which I don't propose to get into. I'm more interested in the general ideas underpinning their position.

Consider the situation of a simple tribe of hunters, pursuing a toothsome mammoth for their supper. Five hunters were involved in various capacities. Imagine one man dug a pit and lined it with devilish looking stakes. Three, by an exercise of their greater skills (at least according to this small community's values), sought out, discovered and flushed the creature from its hiding place right into the pit scoured out by their comrade, killing the unfortunate beastie stone dead. The great woolly monster having been clobbered, their colleagues exhausted, the remaining hunter took up the tiring, but more middlingly skilful work of skinning, chopping up and carting off their dinner. But what is a fair distribution of the spoils? That can depend. Egalitarian souls, this tribe may divide up their winnings equally, recognising the effort and part played by each participant. Each receives one fifth of the mammoth (bracketing the potential for any choice cuts over which people might squabble). Alternatively, this band of hunters might keenly feel the differences between diggers, chasers and butchers. These three groups not being taken to be of equal skill, it would be unjust equally to reward each actor in this drama. According to their ruling ideas of a just distribution, a chaser's contribution is twice that of a butcher, which is double that of a digger. Each chaser receives four times as much mammoth meat as his digging colleague. The chasers carry off 12/15ths of the slain behemoth, the butcher takes 2/15ths while the lowly digger rejoices in a single 15th. On the first conception of justice which sees all participants are equal, this second distribution of the meat looks unfair. For the second, the equal distribution of meat is unfair as it treats unequal people equally, denying some folk what they deserve while rewarding the undeserving. At least according to the hunters' particular account of a just distribution.

Adjust the tale slightly. The mammoth is now hunted by the combined forces of the two tribes, the Equal Distribution tribe and a group espousing the view that a just distribution treats different hunters involved differently. The first tribe is only a third of the size of the second, but between them, they bring the thundering beastie down. According to their dominant account of just division of the spoils, the mammoth is carved up and divvied out proportionally to the size of the families involved in chasing it down and slaying it. These two groups are less interested in giving each man what he is due, but focus instead on a just distribution between families, which may then order their own distribution of their meat as they see fit. To do so is only wise, given their incompatible ideas of justice when it comes to giving each man what he is due. The minority equal distributors will each enjoy an equal share of their part of the animal, while the second family may apply its idea that hunters should gain more than butchers - and so on. Notice here that between the initial cut and the final distribution, two different conceptions of justice mediate.

Although a very simple example, the divisions of the mammoth point up a few instructive points about the recent UK arguments which appeal to equal treatment and the "problem" of differential treatment, whether in terms of university fees, free personal care, prescriptions - or what have you. Firstly, appeals to ideas of "equality" are often much more complex than they appear and are not necessarily incompatible with extensive differences in the treatment of people. As we have seen, while to give hunter A and hunter B the same quantity of meat is an equal distribution in a simple sense, whether or not this is a "fair" distribution will depend on the idea of equality promoted. To return to the more concrete contemporary political example of university funding, it is familiar to deploy the language of equality and fairness, but generally to leave implicit the theories of a just distribution which informs core concepts being used.

Here, I think, two discourses coordinate. Firstly, it has been common to justify the English massive increases in fees for students on the basis that they are necessary, rather than political choices made amongst other options. Accompanying statements of this sort, even the most inveterate Tory MP has frequently reassured us that "I'd love to be able to give every student free education, but because of [insert calamity] we just can't afford it". Looking north to Scotland rebuts this proposition, or seems to. Enter the idea that a mooching celtic fringe is bankrolled by English taxpayers. Let's bracket the tortured question about rates of Scottish public spending for now. Look at the argument. To all intents and purposes, our Tory MP is like a disgruntled digger, disappointed in his own gristly supper, who greedily eyes the dinner an ordinary member of the Equal Distribution tribe enjoys, and assumes that the initial distribution of the mammoth between the groups must have been unfair. How else could it have come to this pass, that his repast is so meagre, while his colleague across the fire, who joined him labouring in the pit early in the day, eats so heartily?

He might even appeal to ideas of equality to express his dismay at his grumbling, unfilled belly, and accuse his better-fed opposite number of jiggery-pokery and of gobbling unfair benefits. In order to reach this conclusion, however, our shallowpated digger is forced to ignore the mediating role played by his own tribe's idea of what a just distribution of mammoth chops consists in. In our contemporary example, this is invisible England, whose choices are obscured. He collapses the two mediating ideas of fairness - a fair distribution of the kill between groups, and the group's internal distribution of its edible goods - into one. Having jealous eyes only for the amount of meat on their trenchers, he sees the whole body of humanity feasting off the kill as part of the same community, his envious gaze obliterating the division between tribes which gives his dinner its intelligibility.

Miss Watt's case about tuition fees is similar. With an eye only for the outcomes for individual students, her use of the language of equality is totally inappropriate, and to accede to its relevance is radically to undermine the whole rationale of devolution. It is simply incoherent to say that you are not opposed to devolution, but wish for English patients or Scottish students to enjoy precisely the same rights and services, and anything less is unjust, unequal and unfair. What the devil do you imagine devolution is for, if not to allow folk to make different political choices? In what strange shape do you think devolution could survive, if it were strictured to observe this sort of uniformity (which, incidentally, didn't even exist before 1998)? To be devolved is precisely to forgo ideas of equal treatment of people in Scotland and England, England and Wales, Wales and Norn Iron. We may argue about the broader levels of funding different parts of the state receive - how the mammoth is initially divided - but we cannot stay two tribes or four tribes able to determine their own ideas of a just and fair distribution of goods, and insist that all people in all tribes should get precisely the same dinner. That education is free in Scotland for Scots residents and wildly expensive in England indicates little about whether the overall distribution of public monies in the UK is fair. What goes unnoticed in all of this, is that if the Scottish Government is willing to assume funding burdens which the UK Government wishes to forgo, is that they will have less money to spend on other areas of governmental activity.

23 August 2011

Here's a shock. You can't just lock folk up without a legal basis. Well, I tell a lie. If you are a sturdy soul with an ambusher's low animal cunning, a ream of duct tape and a spare and empty man-sized cupboard, you could take up antemortem body-snatching in your spare time, but I doubt it'd avail you much at all. As for the state and its agents, quite rightly, their powers of arrest and detention are governed and limited by laws. Article 5 of the European Convention on Human Rights exemplies this logic:

"... no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law".

So, whether or not they might wish it were otherwise, the polis can't just pounce on a fellow and toss them into an oubliette, there to rot away their days. If you commit offences punished by a determinate jail term, and serve out your sentence, you cannot be swooped upon and returned to your cell. If you are a life prisoner released on licence, there are processes of adjudication and deliberation on your condition. For most, these are consoling thoughts. For Robert Halfon, the Tory MP for Harlow in Essex, however, it is otherwise. Says Halfron...

"The release of al-Megrahi marked the low point of Britain's appeasement of Gaddafi. We should make every effort to bring him back so he can spend the rest of his time in prison where he belongs. Or he should spend the rest of his life in a Libyan jail, or be extradited to the US. We should do everything in our power to make sure he is in jail, rather than living a life of luxury."

Our old friends, the American senators - joined by Republican would-be President, the ludicrous Mitt Romney - are hullabalooing for Megrahi's extradition to the United States. Says Mormon Mitt...

"It is my hope that Libya will now move toward a representative form of government that supports freedom, human rights, and the rule of law . As a first step, I call on this new government to arrest and extradite the mastermind behind the bombing of Pan Am 103, Abdelbaset Mohmed Ali al-Megrahi, so justice can finally be done..."

You'd think these American politicians had quite forgotten the Camp Zeist trial, which convicted Megrahi in early 2001 and the Fifth Amendment to the U.S. Constitution, which provides that "no person be subject for the same offense to be twice put in jeopardy of life or limb". Ironically enough - not Mitt's strong suit, I suspect - the general prohibition on double jeopardy is recognised as a human right and and an important expression of the rule of law at work (albeit with creeping exceptions). Not only is it recognised in the American constitution, but is enshrined in key international human rights instruments. The International Covenant on Civil and Political Rights, for example, states that:

Article 14(7). No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

I don't know enough about U.S. law to take a decisive view of what the American Federal authorities can or cannot do, but the same considerations I outlined at the beginning apply. If folk are to be imprisoned, the authorities require a basis in law to do so. Either that, or the government is forced to abandoned law, and turn kidnapper. But what about the British prospects? Halfron seems to be labouring under the impression that all one has to do is present Megrahi at the portals of HMP Greenock, and the governor would immediately give the man his old bunk back and twist the key in the lock. Many folk have been discussed whether Megrahi should be returned to a Scottish jail. Few have asked the more basic question, can he be returned to prison anyway?

For an answer to that question, we have to dip into the Scots Law governing his release. Megrahi was released from jail under the Prisoners and Criminal Proceedings (Scotland) Act 1993, passed by the Tories at Westminster during John Major's premiership. A few preliminary points of interpretation. Firstly, under the 1993 Act, a "short term sentence" is one less than four years, while a "long term sentence" is more than four years. A conviction for a single murder nets you a mandatory life sentence. For obvious reasons, Megrahi's conviction for causing 270 deaths also subjected him to a life sentence. Under section 3 of the 1993 Act, Scottish Ministers are empowered to release prisoners on licence "if satisfied that there are compassionate grounds justifying the release on a person serving a sentence of imprisonment". As we all know, Kenny MacAskill granted Megrahi's application in 2009, releasing him subject to these licence conditions. For a life prisoner, the licence applies until their death [s11(2)], but the Minister can subsequently insert vary or even cancel conditions of licences. But what if these conditions are breached by the released recidivist? What if Megrahi fled to some other address, or some other country, failing to have informed by contact in East Renfrewshire Council ahead of time? Under the 1993 Act, nothing necessarily. There is nothing immediate about licence breaches resulting in re-incarceration. Revocation of licences are governed by section 17 of the 1993 Act. A superficial reading of 17(1)(b) in the context of the Megrahi case is liable to excite. Where...

"... a short-term prisoner has been so released, the Secretary of State may revoke his licence and recall him to prison if satisfied that his health or circumstances have so changed that were he in prison his release under section 3(1) of this Act would no longer be justified."

Here's where it pays to be pernickety. Remember, a short term prisoner is one sentenced to serve less than four years in prison. While Tommy Sheridan could be released from prison on compassionate grounds if he suffered from debilitating scrotal arthritis, and be recalled this section if his ailment cleared up, Megrahi cannot. Admittedly, this seems rather paradoxical, but there it is. So what about life prisoners? Their licences can be revoked under section 17(1)(a), which reads as follows. Where...

17 (a) a long-term or life prisoner has been released on licence under this Part of this Act, the Secretary of State may revoke that licence and recall him to prison— (i) if recommended to do so by the Parole Board; or (ii) if revocation and recall are, in the opinion of the Secretary of State, expedient in the public interest and it is not practicable to await such recommendation.

So the Parole Board might recommend to MacAskill that he recall Megrahi's licence. Absent such an intervention, it MacAskill could unilaterally invoke 17(a)(ii) citing the public interestto recall the licence, allowing Megrahi to be lawfully detained, returned to lock-up and considered "unlawfully at large" while roaming free. "Public interest" is clearly a broad and amorphous concept but notice that "and" in the middle of the provision. I cannot immediately envision the circumstances in which the speediness which justifies the minister o'erleaping the Parole Board would apply in Megrahi's case, but it could conceivably occur. What then? Unlike compassionate release, the Minister has rather less say about returning released prisoners to jail. Even if the Minister revoked his licence under this section, the parole board still gets the final say. The case is then referred to them, and the Minister is constrained to give effect to their direction. You could be a bitter, birching Tory Minister of Justice, minded to consign the prisoner to condign oblivion in your cells, but the final disposal is beyond your control. Where the Parole Board agree with the Minister, the recalled prisoner is returned to their cell. If not, they are re-released.

What all this serves to demonstrate is that it isn't exactly straightforward to give effect to the desire to shove Megrahi back in prison. Even if Megrahi breached his conditions of licence in Libya, there is no automatic requirement that his licence be revoked. Human life is messy, after all. Even more so in a part of the world presently embroiled in turmoil and a political revolution. If Megrahi was arrested by Libyan forces and took up residence in a prison without telling his social worker in East Renfrewshire ahead of time, that would be in breach of his licence - but hardly a particularly just basis to revoke the liberty granted, is it? Via Jonathan Miller QC's piece from 2009, I read with interest this Scottish Prison Service circular from 2005, on compassionate release...

"If a prisoner who has been granted compassionate release because of a terminal illness or other medical condition makes an unexpected recovery, consideration would be given to revocation of the licence and the prisoner's recall to custody."

However, not having perished is hardly a recovery, is it? The elementary fact is this, even if an unwilling Megrahi were hauled back to Scotland, you can't just deliver him back into jail like a letter popped through the letterbox. There are process which, thankfully, are not subject to the whims and preferences of Robert Halfron or David Cameron. Whatever their demands, and the bilious burblings from across the Atlantic, it is perfectly plausible that Megrahi's more telling punishment would not be re-imprisonment, but being forced to live in Newton Mearns...

19 August 2011

The Criminal Justice and Licensing (Scotland) Act 2010 has a lot in it, including provision for a Scottish Sentencing Council, new offences, non-harassment orders. Of its measures, perhaps most prominently featured in public discussion surrounding the 2010 Act is the presumption against short term sentences which it enshrines. As you will recall, the SNP Government were in favour of a presumption against prison sentences shorter than six months. The cohort of Liberal Democrats, alas, were not to be persuaded and between them, the two compromised on supplementing the Criminal Procedure (Scotland) Act 1995 with the following provision:

"A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate."

Despite being passed by Holyrood in 2010, this section of the Act only came into force on the 1st of February 2011. It is important to bear this in mind, when considering the freshly-published statistical bulletin on the Prison Statistics 2010-11. For me, one of the most interesting things about descriptive statistics of this sort is their capacity to surprise. Take the census, for example. I find that most Scots are surprised to discover that in 2001 only 15.88% of the population identified themselves as Catholic, imagining that the number would be far higher. And the prison population? I've been banging on about this for a number of years now, but how many of us really appreciate that since devolution, Scotland's average daily prison population has increased by around 2,000 people, increasing year on year until 2010? The graph below vividly illustrates how much has changed since 1900 - and depicts the substantial prisoner-hike of the Noughties...

As you'll see, this year, the daily prisoner numbers dip very slightly, to an average of 7,853 prisoners locked up in Scotland on a daily basis. Some of these are people on remand awaiting trial, others are awaiting sentencing, while others have been tried, sentenced and are serving out their punishments, and so on. Under the topline, there have been a number of changes. Unsurprisingly, the population profile of our prisons is starkly gendered. Of the total, 7,419 are men compared to 435 women. That said, it's worth noting that while the male prison population has increased by 1,494 extra prisoners in daily lock-up since 2001, an increase of 25% over the decade, the percentage increase in the rates of female imprisonment, while lower in terms of the numbers of women locked up, are much greater percentage increases. The average female population of our prisons rose from 257 in 2001 to 435 in 2011 - an increase of 69% in ten years.

Sitting as we are in 2011, this bulletin clearly doesn't cover the whole year, so it remains to be seen what effect the presumption against short term sentences might have on how many folk we bang up. That said, at present, on average, only some 78 people in the daily population are serving sentences of less than three months, about 1% of the Scottish prison population. Admittedly, this is a small decrease on the 2009/10, where 89 souls were serving sentences of three months' extent. Far more sentenced people fall within the 3 months to 6 month range. On average, 347 prisoners in 2010/11 were serving sentences within this range. These are only the daily average figures. Table 13 shows total direct receptions to penal establishments in Scotland (excluding those who are incarcerated for fine default), with data comparisons made from 2001 - 2010. While a total of 13,109 people were directly sentenced to serve jail terms in 2010/11, 3,011 were sentenced to terms of three months of less - 413 for less than thirty days, 662 between 30 - 59 days, 1,344 people to between 60 - 89 days and 592 to 90 days/three months. The comparatively low figure of the daily average belies the potential impact the SNP's three months presumption might have on the much larger number of folk who spent short bursts in jail. As ever, we have pangs of international comparison. How do our rates of incarceration compare to elsewhere? The statisticians have generated this handy graphic. In 2010, incarceration rate per 100,000 population is as follows...

In other points of particular interest (at least to me), Table 4 shows "Offenders in custody by age, ethnic origin, religion and supervision level." Totalling 7,983 people, 3% of offenders in custody are recorded as being of non-white ethnic backgrounds. Unfortunately, the data we have on the % of folk of different ethnicities in the Scottish population is now a decade old, hence the 2011 census. However, with caveats about potential demographic changes since in mind, it is interesting to compare the ethnic percentages of the prison population with the 2001 Census's findings about the Scottish population by ethnic group. The survey found that 97.99% of the Scottish population was white: Scots, British, Irish, Other. The largest ethnic minority group were Pakistanis, representing 0.63% of the total population in 2001 and almost a third of Scotland's ethnic minority population, at 31.27%. The second largest ethnic group were Chinese, at 0.32% of the total population and 16.04% of the ethnic minority population. Indian, the third at 0.3% and 14.79% respectively. The Religionstatistics have their own interest. 38% of offenders in custody identify as having no religion, with a small smattering of Jehovah's witnesses and Mormons.

I'll end on a controversial note. I've already mentioned that in the 2001 census, Catholics represented only 15.88% of the Scottish population. In terms of offenders in custody, however, 23.3% are Catholics...

14 August 2011

Most of you won't know Bill Walker from Adam. Until recently, that is. The 69 year old was elected as the SNP MSP for Dunfermline in the 2011 Holyrood election, having sat on Fife Council since 2007. Walker signed John Mason's parliamentary motion on the "Equal Marriage Debate" last week, (incidentally, I notice that Patrick Harvie's amendment has now attracted 37 signatures in the meanwhile) but otherwise had not, to my knowledge, spoken to the press in detail about why he felt moved to do so. In something of a scoop for the local media, the Dunfermline Press published an article on Friday morning entitled, "MSP upset by threats in gay marriage row", which includes some highly inflammatory sentiments from the Fife MSP. Walker has now also been cornered by journalists from the Scotsman and the Herald, seeming desperate at every turn to introduce himself to the Scottish people as a cantankerous and shallow-pated hephalump with all of the mental and political dexterity of quivering invertebrate.

"I'm very upset about it. I feel I've been intimidated and almost threatened. I have been called a bigot and all sorts of names, saying I live in the dark ages. The irony is I got married a few weeks ago. Needless to say it was to a woman! There are things called civil partnerships, which I accept, but I'm really concerned about the use of the term 'gay marriage' because to me it's a contradiction in terms and anything that puts homosexual relationships as any way equal to male-female marriages is just not right."

In another revealing section...

Mr Walker said his membership of the Church of Scotland did not affect his decision about the motion.

"That has nothing to do with it because I regard it as a fundamental moral issue concerned with the definition of what marriage is. I don't think people, whether they are registrars or ministers, should be forced into agreeing to do something they don't morally agree with."

So Walker's position is that marriage is, by definition, to be consecrated between men and women only. This whole approach has its curiosities, which are easily missed by over-familiarity. One of the queer features of the marriage debate, whether here or over the water, is how vehemently definitions are deployed by those hostile to gay marriage. In our times, generally speaking, when we are talking about moral positions, this is classically denoted by the use of an extensive evaluative vocabulary - ought, should, I believe. We take for granted a gulf between is and should. Interestingly, often debates about marriage are couched not in these sorts of evaluative terms at all - but deploy the vocabulary of facts - marriage is X, Y and not Z - as if the concept was an object of knowledge, of which one could gain a true or false apprehension, rather than an evaluative matter exercising normative judgement. With that in mind, Walker's intervention is interesting on two counts.

Given the fairly shambolic and injudicious nature of their elucidation, Walker's attitudes are clearly minimally thought through. However, I believe they have an interest, in part because I suspect a number of Scots share them, to the extent that they are hostile to the idea of gay marriage, but want to exclude divine commands from the political debate. Walker's view is that marriage is by definition, between a man and woman, but God didn't tell him so. A number of religious folk have internalised the relegation of faith to the private sphere, after all. These people may be comprehensively or casually pious, but somehow, they will want to keep religion out of their arguments. While the animating drivers of their opposition may be religiously inspired, we can expect most to scrabble around for alternative, secular-sounding justifications for positions taken. We saw something similar in various religious organisations' responses to Margo MacDonald's abortive End of Life Assistance Bill in the last session of Holyrood. These groups' spokespersons and witnesses all started talking like modernist sociologists, making confident predictions about what Margo's Bill, if passed, would do to the social fabric of Scotland. They did not dwell on passages of the Law in Scripture, but were exceedingly keen to focus on pushing law-like generalisations about how we would all become inured to the predations of death, and take up the casual obliteration of our unloved grannies.

But back to Walker. On this own evidence, the SNP MSP is not invoking any sort of divine authority, any scriptural or theological basis for the proposition that marriage is betwixt women and men only. He doesn't invite us to scrutinise the mind or word of God for the proposition that to talk about gay marriage is to fall into logical incompatibility. So what the devil is he talking about? A quick squint about the world makes clear that Walker certainly isn't making a plausible universal social or historical observation about the definitions of marriage. For example, a number of countries have now enshrined same-sex marriage in their laws, including Canada, the Netherlands, Sweden. Similarly, we are all familiar with contemporary and historical instances of polygamy, which bely the simple definition Walker espouses. While I wouldn't want to put words in his mouth, nor ascribe to him more generous sentiments than actually swell his breast, I'd be surprised if Walker believes that Canadian wives and wives, bound in wedlock by their jurisdiction, aren't really married. As a matter of fact, they are according to Canadian law. Factually then, the proposition that marriage is always betwixt groom and bride is simply false. So how are we to understand his position? Helpfully, the man himself affords an insight into his reasoning here. The Scotsman quote him thus...

"Marriage is an emotional and physical relationship between a man and a woman. Consult, for example, Chambers 20th Century Dictionary. It's as simple as that - nothing to do with "equality". Homosexuals and lesbians may have relationships but it is not marriage. "Same-sex marriage" is a contradiction in terms."

I also took the liberty of looking up the Oxford English's definition of "marriage", which is indeed still dominated by references to husbands and wives...

a. The condition of being a husband or wife; the relation between persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex.

I look forward to the tag Obs - obsolete - being added to this particular definition. Walker's attitude towards his cherished dictionary is ridiculously superstitious. He seems to be holding that the book timelessly enumerates objective knowledge about the "true" character of marriage. Like one of Plato's Forms, we are being invited to believe that the authors of his last-century wordbook had exclusive access to solid, ageless and rationally decreed ideas. We sight-loving Yahoos may traffick in our false conceptions as much as we like, but the wise and knowledgeable philosopher kings of Chambers have spoken. Marriage, man, woman, fact. This is an astonishingly elementary stupidity. Indeed, so stupid, that I wonder if Walker, faced with the question - do you really think the authors of the Chambers Dictionary should exercise supreme definitional authority over contemporary Scottish social policy - could bring himself to answer yes. Perhaps I overestimate the man. Such cavilling definitional games would only persuade the very simple, or the intellectually dishonest, trying desperately not to own up to the true sources of their views about gay marriage. I leave it to your consideration, whether Walker is thick, mendacious - or thick and mendacious. However, one thing we can be sure of. Walker is only the first of a number, who will attempt to use the legerdemain of marriage definitions to try to foil the upcoming move towards equal marriage. In all cases, the critical questions are elementary. Why follow that definition? On whose authority? Often, when we peel back the dictionary bindings, we'll find the text of the Pentateuch, and soon smoke out Jehovah. As to Walker's puir me routine, and the whiff of burning martyr which follows him unwisely from article to article -

"People who have been contacting me from various, I would have to call them gay rights organisations, have sent me emails that have been highly abusive. I regard it as bullying. It's like they are trying to stop free speech."

- in line with his pettifogging account of his opposition to gay marriage, Walker propounds a ludicrous and shallow definition of free speech, seemingly imagining that it amounts to a freedom from being contradicted, especially vehement, radical, indicting and unsentimental criticisms of his views. In a clear breach of Godwin's law, and a clear indication he is a political idiot, Walker's immediate response to his brusque dismissal of a perfectly commonplace epistle on equal marriage, which included an utterly innocuous image of the word "homophobia", struck through with a cross - was to tell the Herald that it resembled “pre-war Nazi-type stuff”. Our politics has developed an unfortunate tendency towards demanding of people like Walker that they disavow sentiments they have expressed, retract, recant. I shan't be doing that. If he believes it, by all means firmly avow it, but he should expect to be questioned and criticised. As the Fool says to frosty-powed Lear, Mr Walker, Thou shouldst not have been old till thou hadst been wise...

12 August 2011

In a particularly timely publication, yesterday the Scottish Government released the findings of the Scottish Social Attitudes Survey 2010: Attitudes to Discrimination and Positive Action. Large-scale survey research whose findings are weighted, I've discussed the findings of previous SSA reports before, which always afford interesting insights into the complicated muddle of opinion on any number of subjects in contemporary Scotland. These findings are particularly pertinent on a spectre which was summoned up recently. It has been suggested in some quarters that Scotland is a more socially conservative place than England. Indeed, variations of this argument are sometimes pressed into Unionist service, furnishing a reason why we should be feart about governing our own affairs. I don't propose to enter into a detailed examination of the report's findings just now, but a quick whizz across the main themes it addresses should allow folk to follow up the issues which particularly interest them, pending future, more fulsome blogging on point from me. As the researchers explain in the introductory section of the document...

1.1 In 2010, the Scottish Government promoted a year of 'homecoming', celebrating Scotland's contributions to the world and inviting people across the globe to celebrate Scottish culture. To tie in with 'homecoming', the Equality and Human Rights Commission (the Commission) in Scotland held a public debate in Edinburgh which posed the question 'Is Scotland worth coming home to?' It asked how true our image of ourselves as a fair, welcoming and hospitable nation actually is, and how well this image stands up when we look at Scotland's attitudes to people from different groups.

1.2 This report provides the kind of robust data about public attitudes required to answer difficult questions like these. It presents findings from the 2010 Scottish Social Attitudes survey (SSA), providing a detailed picture of public attitudes to discrimination and positive action in 2010. Moreover, as this is now the third time SSA has included questions on attitudes to discrimination (following previous studies in 2002 and 2006) this report also provides valuable insight into how public attitudes in this area are changing over time.

The survey addresses a number of different equality strands, from disability, gender, sexualities, ethnicities, and particular "scenarios" of discrimination, from employment to relationships. Interestingly, this broad data is extensively broken down by gender, by education, by religion - and so on. Chapter two addresses respondents' more gender attitudes towards discrimination,whether discrimination is perceived as justified in general terms or not, including whether or not they know individuals from discriminated against groups - a Muslim friend, a gay cousin, and suchlike. Particularly germane in the context of the outbreak of discussion on equal marriage for same-sex couples, Chapter Three...

"... examines discriminatory attitudes in the context of personal relationships. It compares how happy people would feel about people from different groups forming a long-term relationship with a family member, and also looks at attitudes towards the acceptability of same sex relationships and views about same sex marriage."

The researchers were exercised to discover what respondents thoughts of the idea of a "a close relative married or formed a long-term relationship" with an individual from various different categories, including:

"...someone who is black or Asian, a Muslim, a Hindu, someone who is Jewish, a Christian, someone who experiences depression from time to time; a Gypsy/Traveller; someone who has had a sex change operation; someone of the same sex as themselves; and someone who cross-dresses in public."

"Happiness" or "unhappiness" with the idea of kin forming relationships with individuals from these groups is correlated against a number of other concerns, including how ancient respondents are, how educated. Unsurprisingly perhaps, those over 65 entertain a series of prejudices which the youngest cohort of respondents do not share. One paragraph will particularly catch the eye of those interested in the coming session of Holyrood...

3.18 The issue of obtaining equal rights for gay and lesbian couples to marry, and not just to form civil partnerships, has been a subject of significant campaigning by some within the gay rights movement in the UK in recent years. In 2010, 61% agreed or agreed strongly that 'Gay or lesbian couples should have the right to marry one another if they want to', while just 19% disagreed (see Annex C for full results). These findings certainly suggest that a change in the law would receive support from the majority of people in Scotland.

"... discriminatory attitudes in the context of employment, comparing views of the suitability of people from different groups to be a primary school teacher. It also explores beliefs about maternity and paternity leave and older people working, and perceived labour market competition from different groups of people."

Relations within employment are also germane to Chapter Five, which posed a new series of questions on attitudes the symbols of religious piety. The researchers asked their informants to imagine a scenario where a bank is conducting interviews, attracting applicants from a range of religious dispositions. Respondents were questioned about whether this banking employer should be able to force individuals to remove their religious dress or symbol while at work. Depending on the symbol and religion, views differed substantially. While few seem enthusiastic about stripped anyone of their crucifix (15% thinking the bank should probably or definitely be able to order its wearer to remote it), there is a stark degree of enthusiasm for employers to be able to insist that female Muslim employees remove their veils. While about a quarter of respondents were up for forcing a Sikh to shed his turban, or a headscarf - a very large percentage - 69% of respondents - thought the bank should be able to force its employees to dispense with a veil. Interestingly, more men than women hold this position.

Chapter Six looks at attitudes towards measures for promoting equality and positive action. Subjects addressed include attitudes to reasonable adjustments for disabled people, and other forms of spending, to held folk from different group find work, amongst others. Chapter seven compares these answers with the findings of past SSAs, exploring how views may have changing over time, including attitudes towards same-sex relationships - by gender, religious attendance, age. Eight asks about the impact of the recession, and touches on respondents' attitudes to ethnic minorities. Do respondents agree that people from ethnic minorities take jobs away from other people in Scotland? What about Eastern Europe? For those after a brisk summing up, a gander at the conclusions is a fine way of short circuiting labouring through the (not always vivid) prose used in government reportage. I'll close with the first part of the researcher's concluding remarks, which give a savour of some of the main themes addressed elsewhere...

9.2 This report has shown that, for the most part, only a minority of people in Scotland hold attitudes that could be described as discriminatory. Moreover, given that such views are strongly related to age, education and knowing someone from a particular group, all other things being equal, we might expect such attitudes to become even less common in the future. As more highly educated younger generations replace the older generations, and as people come into contact with more people who are different from themselves through work, family and other routes, we can expect that prejudiced views will continue to decline.

9.3 However, this report also includes numerous findings that should warn policy makers that this process is not inevitable.

9.4 First, while it is true that for the most part only a minority express discriminatory views, that minority is not always a small one. Some groups - particularly Gypsy/Travellers and transgender people - appear to be the subjects of fairly widespread discriminatory attitudes.

9.5 Second, discriminatory attitudes towards a group of people with particular characteristics often appear more common than discriminatory attitudes towards individual members of that group. In this survey, this appeared to be particularly the case with respect to attitudes to people from ethnic minority groups. Perhaps groups of people with characteristics that may be perceived as different trigger concerns about cultural diversity and economic competition in a way that individual members of that group may not.

9.6 Finally, the incidence of discriminatory views is not evenly spread across Scottish society - there remain certain sections (for example, older people and those with lower levels of educational attainment) that are relatively more likely to express such views. Neither are individual people's views towards a particular group necessarily constant - our data suggests that attitudes may vary widely depending on the specific scenario involved.

9.7 Thus although the findings in this report show Scotland in many respects to be a relatively liberal society, policy makers cannot afford to be complacent, and need to be willing and able to address the specific circumstances that may give rise to discriminatory attitudes towards particular groups.

10 August 2011

In a timely development last week, neatly following my post of the standards the Court of Appeal applies to appeals against conviction based on new evidence being adduced, Tommy Sheridan's appeal against conviction and sentence was rejected at the second "sift" by the Court. As was widely reported, the Crown Office have announced that, under their direction, Strathclyde Police have launched an "investigation into alleged telephone hacking in Scotland". They informed us that...

The Crown had previously asked Strathclyde Police to make a preliminary assessment of the available information and the evidence given by certain witnesses in the trial of Tommy Sheridan following allegations made against the News of the World newspaper. The preliminary assessment has concluded. Strathclyde Police have now reviewed the available information and following liaison with the Area Procurator Fiscal at Glasgow the Crown has instructed an investigation should commence. The investigation will be progressed expeditiously and in close liaison with the Area Procurator Fiscal and Crown Counsel. Significant resources will be deployed though these will vary with the needs of the investigation. The investigation will cover the following:

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

Having investigated these matters Strathclyde Police will report to the Area Procurator Fiscal at Glasgow and Crown Counsel.

Politically, interest has primarily been piqued by the first of these fourfold points of investigation. In context, it clearly speaks to those witnesses in H.M. Advocate v. Sheridan who were asked about the issue of phone hacking, which includes David Cameron's former communications director, Andy Coulson. Perjury is popularly conceived as simply giving false evidence under oath, whatever the nature of that evidence, however trivial or peripheral to the case being examined. Curiously, in Scots Law, perjury is more narrowly defined than that. So "what is perjury, and what isn't?". Scots Law Thoughts has composed a mammoth post on the subject, reviewing the legal authorities, their definition of the offence of perjury, and their applicability to the News of the World Sheridan trial witnesses. Paul writes...

"If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland."

The potentially interesting and problematic question is whether Coulson's answers about phone-hacking at the Sheridan trial, even if wilfully falsely given, can be said to be relevant to the proof of the charge, or the credibility of witnesses? To put this as starkly as possible, if Coulson's evidence was not held to be relevant by the Court, in law, even if the testimony was false, he has not committed perjury. Most would, I fancy, find this to be a pretty shocking conclusion and ill fit with the idea that one should tell our courts the truth, under fear of severe penalty. I profoundly sympathise with that view.

Despite the individual interest of the investigation of potential perjuries these Sheridan trial witnesses, in many respects, the rest of the Crown Office press notice is arguably more important. As I have observed before, we really have no idea about the extent to which the media in Scotland may have used or solicited others to use unlawful means to secure private data, nor for that matter to what, if any, extent Scottish police officers may have corruptly facilitated this seeking after personal information. I have already noted that the Information Commissioner's second report - What Price Privacy Now? - which enumerates the discoveries of Operation Motorman, does not break down its findings by jurisdiction, leaving Scotland's position unclear. What is clear, however, is that the Scottish press is not inoculated against the sharp practices which, once revealed, vilified and destroyed the News of the World. Of the Scottish title, the Daily Record, the Information Commissioner recorded seven confirmed instances of transactions to unlawfully secure private data, with two journalists implicated. Points (2) and (4) of the Strathclyde Police investigation are clearly exceedingly broad - you might think implausibly so - apparently examining all potential breaches of data protection with respect to Scottish residents, and extending to pan-Scotland police corruption and press mischief in that context.

While I can absolutely see a role in the police in an investigation of criminality, I'm not wholly convinced that, given this investigation's very diffuse goals, and the public interest in finding out any conclusions reached, that criminal justice processes can adequately serve all of these goals. For example, where no charges are brought against individuals in court, we tend to learn very little about evidence uncovered by the police in the course of their enquiries. Take the Information Commissioner's report. Needless to say, he identifies a far, far greater number of unlawful transactions than have ever been prosecuted. Cases might not proceed in court for a number of reasons - criminal standard of proof, limited evidence, exclusionary evidential rules, prosecutors determining proceeding is not in the public interest - this does not mean that offences were not committed. In this, as in other areas, taking non-prosecution and non-conviction for evidence that offences have not been committed is exceedingly problematic. While Lord Justice Leveson's inquiry does extend to Scotland, given its already bloated terms of reference, I would be wildly surprised if they took a significant interest in events transpiring north of the Tweed. We know that the Scottish Government commented on the inquiry's draft terms of reference, and wanted Her Majesty's Government to include the findings of Operation Motorman in Leveson's remit. Pete Wishart said...

“The hacking activities by News of the World were reprehensible, but we cannot assume they were confined to just one newspaper or form of media. It is disappointing therefore that the Prime Minister has rejected the Scottish Government’s call to include an investigation into the findings of the Information Commissioners 2006 report on Operation Motorman within its terms of reference.”

Pete need not be too disappointed. The Inquiries Act 2005, under which the Leveson investigation was constituted, affords Scottish Ministers the power to order inquiries into matters that relates to Scotland and are not a reserved matters [s28 2005 Act]. Scottish ministers must at least be dimly familiar with this piece of legislation, since UK Ministers are obliged to consult them, if any inquiry concerns a "matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998". While there may be some legal hurdles to be overcome, it seems to me to be well within the powers of Scottish Ministers to hold their own inquiry on these matters concerning Scotland, if they believe such an investigation would be needful and beneficial, even dictating their own terms of reference. If minded to do so, disappointment could give way to action. Otherwise, Strathclyde's police investigation continues. While we can expect the press to take a great deal of interest in the fates of Bob Bird and Andy Coulson one way or the other - those like me, curious about the currently totally opaque implications of "Hackgate" in Scotland, should be sure to attend to any developments, under points two and four of the Crown Office investigation.

5 August 2011

In 2006, former leader of Glasgow City Council, Steven Purcell, came out. It is perhaps inevitable that opposition members of the Council were asked for their opinions on the subject. What do you think about Steven Purcell's homosexuality? You might have responded in any number of ways. "I have no thoughts on the subject; we are councillors, and the sexuality of the council leader is wholly irrelevant to the way he and we conduct our civic duties and deliberations. This isn't what local politics about, so why don't you shove off and stick your neb somewhere else." Alternatively, you might have avoided appealing to traditional divisions between public and private spheres, and been supportive. "I would like to congratulate Baillie Purcell for taking this brave step and publicly avowing his sexual identity." So what do you think John Mason said? Apparently speaking for the whole SNP group on the Council, Mason responded... .

The SNP has been asked what its view is of the Labour Group Leader's announcement that he is gay. John Mason replied, "We will be spending our time attacking Cllr Purcell's destructive policies, not his personal life. Steven Purcell has broken down the committee system, sidelined many councillors from decision-making, and now is hiving off parts of the Council into unaccountable trusts and companies. All of that gives us plenty of ground to attack Labour on. We do not require to attack Labour councillors on a personal basis."

Frankly, I'm astonished that the SNP group would have selected John Mason to respond for them on this issue. And, having selected him, I'm still more surprised that they allowed him to release these remarks in their name. Mason's remarks remind me of the ambitious Christmas elf caballing against his tippling employer, who assures his local rag, the Lapland Chronicle that...

"Santa Claus' chronic alcoholism and obesity are a matter purely for him. It would be quite, quite inappropriate for me to dwell on his ravaged liver, his intravenous mince pie use or the numerous drink-sledging bans which the courts had made against him. Moreover, if he is in the habit of interfering with Donner and Blitzen when the nights draw in, well, that is entirely a matter for him, and is not a topic I feel comfortable bringing up, never mind discussing. Honestly, it's his declining facility for manufacturing bespoke grenadier nutcrackers which is really concerning us all."

Some may disagree with the assessment of Mason's comments as homophobic. They may not be blatant and littered with the epithets of casual abuse, but the effect is more subtle, more telling and perhaps best identified by asking, what sort of person, if blandly asked about their views on someone's newly publicised homosexuality, immediately assumes they are being invited to attack that person's character? Unlike my climbing and Machiavellian elfin subordinate, there is little indication that Mason is aware of the casual homophobia which informs and makes intelligible this response to the question of Purcell's sexuality. By suggesting that the SNP does not need to resort to personal attacks on Purcell, Mason clearly implies that Purcell's homosexuality is something which could furnish the basis for just such an attack, which the benevolent nationalist Councillors decided to abstain from. The ugly homophobic logic is quiet, but undeniably present.

Remarks from a good while back, certainly, but interesting in the context of John Mason's motion on the "Equal Marriage Debate", which has caused a stir. The media have particularly picked up Pete Wishart's criticism of its terms as a "nasty little anti-gay marriage motion". It reads as follows:

That the Parliament notes the current discussion about same-sex marriages and the Scottish Government’s forthcoming public consultation concerning equal marriage; further notes that, while some in society approve of same-sex sexual relationships, others do not agree with them; desires that Scotland should be a pluralistic society where all minorities can live together in peace and mutual tolerance; believes that free speech is a fundamental right and that even when there is disagreement with another person’s views, that person has the right to express these views, and considers that no person or organisation should be forced to be involved in or to approve of same-sex marriages.

Cue a number of sneering, look-I-told-you-so suggestions (often, I'm afraid, from the Labour-sympathetic) that, despite every declaration to the contrary, that the SNP is really a party of enthusiastic bigots, and that overtures to inclusiveness and tolerance are simply cultivated rather than sincere. This is wearying predictable and, as the following will demonstrate, simply inaccurate. Curiously, over the last couple of days, MSPs who had originally been recorded as supporting Mason's motion have deleted their endorsements. There has been some suggestion of technical glitches, although that may not strike the mind as immediately plausible. While SNP MSPs Gil Pateron, Dennis Robertson and Mike McKenzie initially appeared to support Mason's position, their names have now been removed from the motion, leaving only Richard Lyle and Bill Walker. Only Dave Thompson's has been added since. By contrast, Patrick Harvie's amendment has accumulated several more supporters in the meantime, at the time of writing including Jamie Hepburn (SNP), James Dornan (SNP), Sandra White (SNP), Kevin Stewart (SNP), Maureen Watt (SNP), Dennis Robertson (SNP), Joe FitzPatrick (SNP), Gil Paterson (SNP), George Adam (SNP), Alison Johnstone (Green), Aileen McLeod (SNP), Joan McAlpine (SNP), John Finnie (SNP), Drew Smith (Labour), Willie Rennie (Liberal) and Mark McDonald (SNP). Given the condescending commentary from many Labour supporters about what they see as the unmasking of SNP reactionariness, and their own egalitarian credentials, the relative dearth of Labour signatories to this amendment must strike the fair minded observer as somewhat ironic.

However, in terms of clear political commitments, it is undeniably the case that the SNP's official line on marriage equality is profoundly limp, and we can certainly expect a few of our parliamentarians to articulate views that many in the party will profoundly disagree with. In the final analysis, however, I expect most SNP parliamentarians to support the equalising measure, however regrettably coy we might have been about making a clear party commitment to the policy. On page 16 of the manifesto, under the heading "a more equal Scotland", we say...

"We recognise the range of views on the questions of same-sex marriage and registration of civil partnership. We will therefore begin a process of consultation and discussion on these issues."

During the Holyrood campaign in May, Alex Salmond let it be known that he supports gay marriage. Although one might suspect that the timing of this declaration was prompted by the potentially alienating Souter factor, we have no reason not to take Salmond at his word that he'd vote for equalising marriage in Scotland. Similarly, at a hustings in Queens Park Baptist Church during the campaign, Nicola Sturgeon confirmed that she too supports gay marriage. Amusingly, her Labour opponent in Glasgow Southside, Stephen Curran, gave such an elaborate and circuitous answer (in the end, supporting gay marriage), that a wee auld wifie I met later that week actually believed that he'd insisted that a marriage is between a man and a women. Either that, or she had muddled him up with the skelf running in the constituency for the Tories, Councillor David Meikle, who insisted the marriage is a knot betwixt Adam and Eve, not Adam and Steve.

Although it very likely signals his personal approach to equal marriage for same-sex couples (and incidentally, I hope the consultation will also consider the possibility of civil partnerships for couples who are not of the same sex), the implications of much in Mason's motion are not immediately clear. Is he arguing some people oppose gay marriage, therefore it must not be permitted to go the statute book? His comments have been read like that, though he doesn't explicitly say so. Is he putting it to the parliament that marriage is exclusively a theological concept, "instituted by God" and thus limited to men and women, which the civil authorities should "recognise" and "uphold"? Maybe, but again, he doesn't explicitly say so. Surely, however, he is correct to identify this as a complicated issue, commingling law, social policy - and for some, theological positions.

What's more, it strikes me that the answers to the questions raised in and by Mason's motion are by no means straightforward or unerring deduced from accepting their premises. For example, I am not myself a religious creature, but I can imagine one of the faithful who believes that marriage is exclusively to be understood in theological terms, but who would be willing to recognise the right of civil authorities to bind same-sex couples in wedlock. These unions may not resonate in the divine sphere, for her, but would accept that that religious conception of marriage need not determine the approach taken by Scottish civil authorities. Others will disagree, demanding that marriage remain exclusively between men and women, while substantially agreeing between themselves on the idea that marriage is to be understood in primarily religious terms.

I for one very much welcome the disagreement and discourse which this has already prompted in the SNP group - which I fancy will, in due course, be felt in other parts of Holyrood too. I doubt the issue prompts a uniform reaction from either the Tory or Labour groups, for example. It is quite right for these issues to be discussed in parliament, for disagreement to be aired where disagreement exists, and the arguments and conceptions relied upon explored, and where necessary, dissected and rebutted. If we are going to get into these issues, understand one another, and hopefully, convince folk of the virtues of the state affording its citizens equal right to institute their relationships on equal terms, we should dispense with discussion-foreclosing responses which loftily dismiss alternative positions as "ridiculous", and leaving that intolerably brief characterisation as the last, trite word on the topic.

2 August 2011

Mater Peat Worrier is thoroughly sick of Tommy Sheridan. For her, the Satsuma Socialist is guilty as sin, indictment proved, conviction well earned and eminently deserved. The reappearance of Sheridan's brazen phizog on the telly over the hacking scandal, and Andy Coulson's arrest in particular, prompted groans and rolled eyes. Without a leg to stand on he might be, but "the Black Knight always triumphs!"

For those who feel similarly, I apologise for what follows. However, with all of the rumour and conjecture surrounding the case, I thought it would be helpful to compose a clear exposition of just how the High Court of Justiciary deal with appeals against conviction, raised on the basis of new evidence becoming available after the jury's final say. A certain degree of circumspection is indicated here. We know that the Crown Office has instructed Strathclyde Police to investigate telephone hacking in Scotland, with an especial focus on "allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan". That investigation may raise criminal prosecutions I have no intention of prejudicing.

Using the resource of the contemporaneous Sheridan Trial blog, Scots Law Thoughts has applied his forensic mind to the available testimony of some of these witnesses - specifically those News of the World figures, including Andy Coulson - exploring potential grounds on which perjury charges might be brought against them, and the difficulties which might assail proving such charges in court.

Informed by the driving interests of the London media, much of the discussion has focussed on the figure of Andy Coulson. In various quarters, it has been suggested that if the Prime Minister's former communications director did commit perjury in H.M. Advocate v. Sheridan, Tommy's conviction is surely rendered questionable, undermined, unsafe. Less discussed, there is also the issue of missing emails which were not produced at the time of Sheridan's trial, but which have now been recovered. We do not know what these communications may contain. Speaking to the BBC, Labour MP Tom Watson argued...

“The jury was not in full possession of the facts. I think Tommy Sheridan was wronged. Had they been in possession of the email it might have materially affected the outcome of the trial.”

A few weeks back, I composed a brief post with very limited aims, entitled "Sheridan wasn't convicted on the evidence of Andy Coulson". My intention was to make two basic points. Firstly, Coulson was a witness called by the defence and his evidence did not constitute any part of the Crown case. He was not, as some people were suggesting, an essential witness against Sheridan, though he was certainly a hostile figure called at Tommy's own instance, with little prospect of adding exculpatory evidence to the charges he faced. Re-examining the final indictment, I suggested, also serves to put Coulson's comments from the witness box in some sort of perspective.

In that piece, I was careful not to be too sweeping, nor to argue blankly that whether or not Coulson perjured himself in the Sheridan trial is of no consequence for any appeal against Sheridan's conviction. Although I unaccountably missed it at the time, and it was not widely publicised, in early June, Lord Wheatley refused Sheridan's first attempt at an appeal against conviction and sentence in the first "sift", a finding his legal representatives are presently inviting further judges of the High Court to review. It remains to be seen if these judges will see arguability where Wheatley saw none. However, on the BBC's Politics Show Scotland, Scots criminal advocate Paul McBride QC, dispensed with such circumspection, confidently arguing that...

"Tommy Sheridan was convicted of perjury by telling a civil jury that he hadn't been to a swingers club and that he hadn't told members of his own party about it. The evidence at the trial was from members of his own party that he had been to a swingers club and the jury accepted that evidence and he was convicted of perjury. The News of the World had no input whatsoever in relation to that perjury conviction, so the evidence of any journalist of the News of the World, even if it was perjured evidence, would not affect the conviction of Tommy Sheridan at all."

So is Mr McBride correct? Is it as clear-cut as all that? Alternatively, is there any basis to conclude that the speculators crying that Coulson's arrest (remember, he hasn't been charged with anything, and may not be subject to any criminal proceedings) must cause the High Court of Justiciary to turn the key in the lock, and throw open Sheridan's cell door? What to make of Tom Watson's suggestion that the failure to produce these emails - whose contents, remember, we cannot assess - of itself constitutes a miscarriage of justice? How can we expect the Court of Criminal Appeal to approach these issues? Our starting point for criminal appeals is part VIII of the Criminal Procedure (Scotland) Act 1995. The Act provides that the High Court can review convictions on the basis that they are a miscarriage of justice.

"... which may include such a miscarriage based on— (a)subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings ..." [s106(3)(a)].

As this suggests, the 1995 Act imposes some limits on the new evidence which can found an appeal. The evidence must not have been heard at the original proceedings and there must be a "reasonable explanation" for why new evidence was not heard at the time [s106(3A)]. Where the evidence is from a person who gave evidence at the original proceedings, and differs from or is additional to the evidence adduced there, it may not furnish a basis for an appeal unless "there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence" [s106(3C)(b)].

"Independent evidence" includes evidence not lead at the original proceedings; from a source independent of the person producing the new, unheard evidence; which the court accepts as both reliable and credible [s106(3D)]. On any reading, however, the statute is silent on the how an appeal based on new evidence is to be determined. Outstanding, therefore, is the question: what constitutes a miscarriage of justice? To answer this question, we have to turn from statute to the criminal jurisprudence of the High Court. Our starting point is the dicta of Lord Justice-General Emslie in Cameron v. H.M. Advocate. Emslie held that:

"... if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial. If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice...

(1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice.

(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.

(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.

(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial.

The first thing to observe about this approach to criminal appeals is its flexibility and lack of formalism. In the recently UK Supreme Court case of Nat Fraser v. HM Advocate, Lord Hope described this approach as a "quite stringent". For example, any new evidence discovered may be credible and reliable, but may not have a material bearing on a "critical issue" at the trial. Alternatively, evidence may speak to a critical issue, but may not come from a credible or reliable source, thus nobbling any appeal against conviction predicated on it. Any Sheridan appeal founded on new evidence, whether emails or the allegedly perjured testimony of Andy Coulson on his knowledge of unlawful practices at the News of the World, fits into the legal framework of Cameron and subsequent cases.

To my eye, the vital (and challenging) question for Sheridan and his representatives to answer is how evidence of Coulson's perjury, or new emails featuring the Satsuma Cicero have a material bearing on critical issues at his trial? In coming to a view of what is critical, look back at the final indictment. In what respect is the general hacking practices of the News of the World, and their editor's knowledge of the same, critical for the determination of whether Tommy went to swingers club in Manchester, told his SSP colleagues about it, and subsequently lied in court about both attending Cupids and telling others about it? Of the emails, it is impossible at this stage to take a firm view. Obviously, if this body of communications contains correspondence asking "how is the concocted footage of Sheridan's confession coming?" - that could be said materially to relate a critical issue at the trial - the veracity of the "McNeilage tape", which was played through to the jury on a number of occasions.

However, we can be absolutely clear that Tom Watson MP is quite wrong in law to suggest that the absence of these emails by itself makes the case's outcome fundamentally questionable. Watson may hold that view, but the High Court of Justiciary certainly won't sympathise. Essential if these documents are to secure the upturning of the jury's verdict is that their contents are "likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial" and thus they are "not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice". The same goes for any untruths in Coulson's evidence in the High Court.

In the absence of emails drafted in the hypothetical, fundamentally incriminating terms I describe, I struggle to see that the High Court will be moved to overturn the jury's decision. Similarly, if Coulson's alleged perjury is limited to the general unlawful practices of employees at the News of the World, and his knowledge of them, how does that impact on the critical issues of the Sheridan trial, concerning swingers clubs, his confessions to his colleagues and his lies about both in Court?

These are the questions which Sheridan's representatives will have to work up persuasive answers to, if their client is to see his conviction quashed on grounds of new evidence. As the Lord Justice General noted, setting aside the verdict of a jury is no light matter. And on these tests, convincing the High Court to overturn Sheridan's conviction may be a very tall order indeed, despite alleged perjury, despite absent emails, whatever Tom Watson believes.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.